Germany opens criminal probe into U.S. tapping of Merkel’s phone

German lawyers stand in front of the Reichstag in November 2013 to protest American spying. One sign says “Frau Merkel, this is not just about your phone.”

CLAUDIA HIMMELREICH — MCT

BERLIN — Almost a year after news surfaced that the United States had been spying on German communications, Germany’s top prosecutor announced Wednesday that he’s launched a criminal investigation into the tapping of Chancellor Angela Merkel’s cellphone.

“Let me be clear: Espionage is a crime in Germany regardless of whether those spying are friends or enemies,” Federal Public Prosecutor Harald Range said as he opened a news conference to announce the investigation, which he disclosed first during a closed session of the Parliament’s judicial committee.

Range’s decision _ and his unusual candor in branding the surveillance of Merkel’s phone a crime _ underscored just how raw German nerves remain over the revelation that the United States had been eavesdropping on Merkel’s cellphone for years. Range noted that an espionage conviction would carry a 10-year prison sentence.

He said his office had developed information that specific individuals, not impersonal computer programs, had been involved in tapping Merkel’s phone _ and that that was one reason his office had decided to pursue the case.

“We’re finding ourselves in a new reality here. James Bond 007 is yesterday. James Bond 2.0 is today,” he said.

In Washington, White House adviser Ben Rhodes didn’t directly address the probe when he was asked about it but he acknowledged ongoing discussions with German officials about National Security Agency surveillance issues. “We believe that the best way to address the concerns that Germany has had about NSA’s activities is through a direct dialogue with us,” he said. “We believe we have an open line and good communication with the chancellor and her team, and that’s where we’re going to continue to focus our efforts.”

Range said he’d contacted former NSA contractor Edward Snowden through Snowden’s German attorney to testify. Snowden, who’s been living in Moscow since he leaked hundreds of thousands of secret documents last year that revealed the extent of NSA electronic surveillance, has yet to respond, Range said.

What role Snowden’s documents may have had in the revelation that the U.S. was eavesdropping on Merkel’s phone remains uncertain, however.

The German newsmagazine Der Spiegel reported in October that its reporters had uncovered the information during their investigations into American spying. But unlike other reports in which they were quick to credit the Snowden documents, this one didn’t cite him as the source. Spiegel said only that its reporters had seen Merkel’s private number on a secret NSA list of spying targets, and not how it had obtained the list. Some members of Parliament have suggested that the information might not involve Snowden’s documents.

Still, news and allegations surrounding the NSA surveillance scandal have been front and center in German politics and discussion since the first story broke a year ago. Germans have a heightened sensitivity to government spying programs, drawn from their experience living through the Gestapo of Adolf Hitler’s Nazi reign and communist East Germany’s Stasi secret police.

By October, when the news broke that the United States had tapped Merkel’s cellphone, German anger at what was termed a breach of trust and friendship had hit a fever pitch.

Privacy advocates have repeatedly noted that German law protects all German citizens from spying, and the government has been under severe public pressure to open criminal probes not only into the tapping of Merkel’s phone, but also into the electronic surveillance the NSA undertook on millions of everyday German communications.

Range said, however, that for now he didn’t have enough evidence to prosecute wider allegations of NSA spying and had ruled out pursuing a case against U.S. spy agencies for having peeked into the private communications of everyday citizens. His office did say it would continue to monitor developments in the broader case.

The announcement that charges are being investigated in the tapping of Merkel’s phone resonated here. While critics frequently note that the chancellor is no more deserving of privacy than any other German citizen, Germans in general have seen tapping her cellphone as an insult to all of them. Merkel’s cellphone is often identified as an extension of the chancellor herself, and she’s frequently photographed cradling the phone to her ear.

Many Germans expressed surprise that a criminal case is being pursued. Some had started to doubt that their government had the nerve to challenge the United States on the matter, which has become an anchor weighing down U.S.-German relations.

Range made it clear that his probe targets Americans. A statement from his office said that “extensive preliminary investigation has uncovered sufficient factual indication that unknown members of U.S. intelligence services” had tapped Merkel’s phone.

The statement said the investigation formally began Tuesday.

It noted that any charges would likely come under Article 99 in the German penal code, which reads, in part, “Those who carry out secret service activities for a foreign power against the German state are subject to up to five years or in extreme cases up to 10 years in prison.”

The statement added: “There are sufficient indications for the allegations.”

The statement made no mention of the NSA but said the prosecutor’s office “will keep watching the mass collection of telecommunication data of the public in Germany by British and U.S. intelligence services. We will intensify the prosecution of cyber espionage.”

Range noted that the prosecutor’s office has set up a cyber espionage unit to investigate current and future claims.

The German newspaper Bild reported that the case had advanced because it became clear to German authorities that the tapping of Merkel’s phone wasn’t the work of nameless, faceless and invisible computer programs.

The newspaper reported Wednesday that “There are now indications that beyond pure electronic surveillance, there were American agents in Berlin for the purpose of spying on the chancellor.”

This, if true, would go against the reassurances to German officials from the Obama administration that the sole nature of the surveillance was electronic and impersonal.

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